Ferrara Fiorenza P.C.
 

Freedom of Information Law Compliance Can Require Providing Redacted Copy of Record

 A recent decision by the New York State Court of Appeals provides a strong message to school districts and BOCES about complying with the letter and spirit of the Freedom of Information Law (FOIL). In Matter of Schenectady County Society for the Prevention of Cruelty to Animals v. Mills (decided 10/25/11), the Court held that an agency responding to a demand under FOIL may not withhold a record because some of the information in that record is exempt from disclosure.  The Court noted that “[w]here it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information.” 

In the Schenectady ASPCA case, the ASPCA made a FOIL request to the State Education Department for a list of names and business addresses of licensed veterinarians in Schenectady County.  The Department offered to provide names and cities, but refused to provide street addresses explaining that “[a]s our computerized files are currently configured, we are unable to distinguish a licensee’s business address from a residential address”.  However, in the subsequent FOIL litigation, the Court of Appeals rejected this argument out of hand, stating that, 

“It seems obvious to us that, if the Department does not want to supply home addresses, it should simply delete them from the list.  It says that its computer database does not distinguish between home and business addresses, but it does not claim that it would be hard to find out, by communicating with the licensees, which addresses are homes and which are businesses.  This should not be a burdensome task, because the number of licensed veterinarians in Schenectady County is unlikely to be very large; it was represented at oral argument that the number is 72.” 

The Court concluded that the Department had the choice of producing the existing record in full or removing the information that it did not want to produce and that the ASPCA did not demand.  The Court then sent a clear message to all State agencies and municipalities about handling FOIL requests without going to court: 

“We are at a loss to understand why this case has been litigated.  It seems that an agency sensitive to its FOIL obligations could have furnished petitioner a redacted list with a few hours effort, and at negligible cost.  Instead, lawyers for both sides have submitted briefs and argued the case in three courts, demanding the attention of 13 judges, generating four judicial opinions and resulting in a delay in disclosure of almost four years.  It  is our hope that the Department, and other agencies of government, will generally comply with their FOIL obligations in a more efficient way.” 

As a reminder, here are some of the FOIL basics with which school districts and BOCES must comply: 

Handling the FOIL Request

1.  Grant or deny access in whole or in part within five business days; 

2.  If more time is needed, acknowledge the receipt of the request in writing.  The acknowledgement must include an approximate date that indicates when you will grant or deny the request.  The date must be reasonable under the circumstances of the request and in most cases this will mean an additional 20 business days. 

3. If more than 20 additional days are needed, provide an explanation and the timeframe within which the request will be granted or denied (in whole or in part).  That date must also be reasonable in consideration of factors like the volume/complexity of the request, the need to search for records or the obligation to review records to determine rights of access and confidentiality. 

4. If a school district or BOCES fails to respond to a FOIL request within the timeframe provided by law, this failure is deemed to be a constructive denial of the records which can be appealed. 

5. A school district or BOCES also may inform the person requesting the records that the request does not reasonably describe the records sought, including direction to the extent possible, that would enable the requestor to reasonably describe the records sought.  The Court of Appeals, our state’s highest court, has held that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that “the descriptions were insufficient for purposes of locating and identifying the records sought” (Konigsberg v. Coughlin, 68 NY2d 245.) 

6.  Remember that FOIL requires that school districts and BOCES adopt regulations detailing the procedures by which individuals may review records.  The regulations must specify the times and places where records are available, the names and titles of persons responsible for providing records, and any fees for copying records. 

If a school district or BOCES Records Access Officer denies a FOIL request, he or she must do so in writing and must provide an explanation for the decision.  The written denial must also include notice to the requestor of the right to appeal the Record Access Officer’s decision together with the name, title, business address and telephone number of the person or body designated to determine FOIL appeals on behalf of the district or BOCES. The Records Access Officer cannot serve as the Appeals Officer. 

While a school board or BOCES may determine FOIL appeals, many choose to designate an individual such as the superintendent, district superintendent, deputy or assistant superintendent or the school attorney to serve as the Appeals Officer.  When a person’s FOIL request has been denied, that person has 30 days in which to appeal the denial to the Board or Appeals Officer.  The individual is not required to provide an explanation as to why the records must be disclosed. 

The Board or Appeals Officer must either make the requested records available or fully explain the reasons for denial within 10 business days of its receipt of the appeal. Under a 2005 amendment to FOIL, a failure to determine an appeal within 10 business days of receipt constitutes a denial of the appeal and permits the requestor to go directly to Court without waiting any further. 

Remember that FOIL requires that school districts and BOCES transmit copies of all FOIL appeals when received plus copies of the subsequent determinations to the Committee on Open Government. 

If you have any questions about FOIL or about the handling of a specific FOIL request/appeal, please contact us.

 

Excerpted from the December 2011 edition of "School Law Matters".  To view the entire newsletter, please click here.